The Trial Penalty

Exercising Constitutional rights comes with a price.

In the comments section of yesterday’s post on erstwhile QAnon Shaman Jacob Chansley’s 41-month sentence for his crimes on January 6, Matt Bernius rightly called out Judge Royce Lamberth’s admonition, “You were facing 20 years, Mr. Chansley. The one advantage you get here is you’re only facing now 41 months. It may not feel it today, but let me guarantee you, you were smart and did the right thing.”

On the one hand, the judge chose to sentence Chansley to the shortest sentence he could under the statute, acknowledging the non-violent nature of the crime. And yet, if Chansley had exercised his constitutional right to a trial he would risk getting roughly 5 times that sentence. That’s what’s known as the trial penalty.

It’s easy to say “well we knew he was guilty, why does that matter.” In this case it might not, but the impact of that trial penalty is that over 90% of all cases never go to trial and the State’s evidence is never tested. And this without a doubt leads to people pleading guilty to things they did not do out of sheer fear of risking the consequences of taking something to trial.

Reason‘s Billy Binion fleshes that point out in a piece titled “Don’t Punish the QAnon Shaman—or Anyone—for Demanding a Jury Trial.”

At first glance, I’d posit most readers wouldn’t think much of that; plea bargains are a core part of the U.S. criminal justice system. Yet in being frank with Chansley, Lamberth laid bare why those “bargains” are raw deals: Had Chansley insisted on his constitutional right to a trial by jury, he would have been staring down more than 16 additional years in prison. That’s not because the government believes such a stratospheric sentence would serve public safety. It’s because prosecutors routinely inflate hypothetical prison sentences and dangle them over defendants in order to bully them out of going to trial, where outcomes are both costly and uncertain.

In plainer terms, Chansley could have received almost 6 times a higher sentence solely for exercising his constitutional rights—something the judge here not only acknowledged but celebrated.

This is in no way unique to the January 6 defendants.

“The way the modern criminal justice system is structured, we punish people if they try to go to trial, which is sort of an astounding thing to say out loud,” says Carissa Byrne Hessick, a professor of law at the University of North Carolina and the author of Punishment Without Trial: Why Plea Bargaining Is a Bad Deal. “And yet it’s entirely commonplace….Judges are quite explicit that they impose heavier sentences on people who go to trial.”

Lamberth said the quiet part out loud yesterday. But judges are not where the plea-bargaining problem begins or ends. For years, tough-on-crime legislators have passed laws that allow prosecutors to hit defendants with multiple charges for the same offense, giving the government leverage to threaten the accused with grotesquely inflated punishments. The escape hatch: Agree to waive your constitutional right to a trial by a jury of your peers, and accept whatever the authorities will give you.

“State officials, prosecutors, judges are trying to keep cases from going to trial because it’s expensive,” says Hessick. If it were about public safety, would a plea have been offered in the first place? Take Chansley: Of course the federal government does not believe he needs to stay behind prison walls for two decades. If they thought so, they wouldn’t have agreed to the deal.

The trials for the January 6 defendants have been highly politicized, and how you feel about Chansley’s sentence may have something to do with your political priors. But the injustice inherent to plea bargaining is not partisan. Indeed, it infiltrates the entire U.S. criminal justice system and disproportionately impacts defendants without means.

This is a feature of our justice system down even to the level of minor traffic offenses. Once issued a ticket, you are presumed guilty and expected to simply plead guilty and pay the fine. Refuse and you get to sit around the court all day, pay more for the privilege of getting your day in court than the fine, and then get an inflated fine because the judge is irritated that you’ve wasted the court’s time. (It’s even more fun if you get a ticket out of state, since it would be absurd to drive or fly back to that locale weeks or months later to dispute a ticket.)

But there, at least, the stakes are relatively minor. We really, really shouldn’t be bullying people into pleading guilty to crimes that put them in jail for years and permanently mar their social and economic prospects.

Some would argue the practice is unconstitutional. Prosecutors in Maricopa County, Arizona, for instance, make no attempt to conceal the fact that defendants are pressured to take plea deals before seeing the evidence against them or getting a chance to go to a pretrial hearing. The accused receive a warning on those deals: “The offer is withdrawn” if a defendant wants to attend the hearing, and “any subsequent officer will be substantially harsher.” The American Civil Liberties Union is suing to stop this practice.

Consider Michael Calhoun, a 61-year-old man who the Maricopa County Attorney’s Office offered an excess of nine years in prison for selling about $20 worth of drugs. He has never been arrested for a violent offense, according to police records. Yet should he have the audacity to ask a jury to consider the charges against him, he will receive something “substantially harsher” than that near-decade “deal.”

This is one reason why 97 percent of trials in the U.S. are resolved via guilty pleas. If prosecutors threaten someone with a decades-long sentence, and a defendant is worried about his likelihood of acquittal, it’s no wonder why he and many others in his position would take such a deal, opting to minimize risk. That obviously includes guilty people. But it includes innocent people too.

And even defendants we think are guilty are entitled to their Sixth Amendment rights. The Founders understood that rigid safeguards were necessary to ensure that the innocent weren’t deprived of their liberty. So they made it difficult to convict people—something prosecutors clearly understand and would like to circumvent.

Of course, the Sixth Amendment is all but meaningless if you’re poor and uneducated. You’re unlikely to understand what your rights are or that the prosecutor is bluffing. And your court-appointed counsel is likely to be incredibly inexperienced and unable to devote anything like the time and effort to mount an effective defense against the state’s handpicked, experienced, well-financed prosecution.

Further, as Berkely law professor Malcolm Feeley told us more than four decades ago, The Process is the Punishment.

Basing his argument on intensive study of the lower criminal court system, Feeley demonstrates that the absence of formal “due process” is preferred by all of the court’s participants, and especially by defendants. Moreover, he argues, “it is not all clear that as a group defendants would be better off in a more ‘formal’ court system,” since the real costs to those accused of misdemeanors and lesser felonies are not the fines and prison sentences meted out by the court, but the costs incurred before the case even comes before the judge—lost wages from missed work, commissions to bail bondsmen, attorney’s fees, and wasted time. Therefore, the overriding interest of the accused is not to secure the formal trappings of the judicial process, but to minimize the time, and money, spent dealing with the court.

Focusing on New Haven, Connecticut’s, lower court, Feeley found that the defense and prosecution often agreed that the pre-trial process was sufficient to “teach the defendant a lesson.” In effect, Feeley demonstrates that the informal practices of the lower courts as they are presently constituted are more “just” than they are usually given credit for being.

Now, I don’t think this contradicts what Bernius and Binion are arguing. Rather, once the state decides to wield its power against a citizen, the latter simply has no good options. Even a completely innocent and well-heeled individual will have to invest substantial time, energy, and money into making the problem go away. But, because the incentives work in favor of speedy resolution, the state will tend to go after those it can prove guilty of some sort of infraction and who lack the resources to put up a good fight.

In Chansley’s case, he may have been able to find outside financing to put up a strong defense. (Although, ironically, that would have been easier if he had stuck to his QAnon conspiracy nonsense rather than realizing the error of his ways.) Even if the prosecution had been willing to start off with reasonable charges that carried an appropriate penalty, Chansley would almost certainly have been found guilty. He would still have gotten 41 to 51 months in jail. But he’d have had to deal with probably another eighteen months or so of additional stress associated with the defense and had nothing to show for it but massive legal bills.

FILED UNDER: *FEATURED, Crime, Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. matt bernius says:

    I have the biggest smile on my face reading this James as (1) I’m so happy to see this topic getting more attention and (2) I had been kicking around the idea of pitching you on a post about this (and now I don’t have to do that and break a promise to myself to not take on any additional writing until next year).

    So instead, let me add on a couple additional thoughts:

    This is a feature of our justice system down even to the level of minor traffic offenses.

    This is completely correct. And the reality is that our criminal legal system would fall apart without those laws because we are not set up to handle even a faction of the number of criminal cases that are brought. Today 3% of Federal Felony cases and about 8-9% of State Felony cases go to trial (more details: https://www.themarshallproject.org/2020/11/04/the-truth-about-trials). If there was a shift of more than a few points in either category, the system would more or less go into crisis mode.

    In the thread that James referenced, @Kathy asked this:

    I wonder, too, what would happen if more criminal defendants, say 25%, opted for trial. Would they be held in jail for years until they plead out or finally get their day in court? Or would we see some kind of expedited court, which would trample all rights and rules of evidence to be done in a day or two at most in a bench trial?

    The answer is this would very much depend on where you are because of how the system in the US is structured. While there is a Constitutional Right to a speedy trial, what that means is only defined at the Federal level. Each state interprets the statute differently and may or may not have time limits on the book (https://www.ncsl.org/research/civil-and-criminal-justice/speedy-trial-rights.aspx).

    Which is also where cash-bail comes into play as a coercive tool to often force plea deals for people who are essentially being jailed because they are too poor to make bail.

    One thing that could (hopefully) happen, is that Prosecutors could exercise more discretion and only charge cases that they believe they could win *at trial* versus through coercive plea deals.

    Also, James I’m happy you brought up Malcolm Feeley. There’s one passage that represents how much has changed in four decades:

    Moreover, he argues, “it is not all clear that as a group defendants would be better off in a more ‘formal’ court system,” since the real costs to those accused of misdemeanors and lesser felonies are not the fines and prison sentences meted out by the court, but the costs incurred before the case even comes before the judge—lost wages from missed work, commissions to bail bondsmen, attorney’s fees, and wasted time.

    This is still theoretically correct in terms of the immediate costs of going to trial. However, what has changed in the last 4 decades is the impact of having a criminal record*. The advent of the background check industry and computerized records means that even low-level misdemeanors follow you around for the rest of your life and limit people’s ability to get jobs, housing, education, and even participate in things like volunteering. That’s before we get to things like disenfranchisement or having to deal with probations which can often lead to additional issues for people like technical violations.

    What used to be a “good deal”–choosing not to fight and just plead guilty to a lesser charge that might not even include jail time–can now greatly complicate, if not derail, a person’s entire life. Then apply this to overpoliced communities and you have huge groups of people who were already having challenges finding work being essentially barred from most jobs above fast food service.

    The net economic result of those criminal histories on individuals, families and communities is huge in terms of lost wages, lost taxes, and increasing the need to rely on social safety net services to survive. More on the economics of this here: https://www.americanprogress.org/article/expunging-clearing-criminal-records/

    * – For more on this, my colleague Aditi Joshi has been curating a series of audio narratives about people’s struggles living with criminal histories. The first episode is here.: https://www.codeforamerica.org/news/listen-the-impact-of-a-criminal-record-on-jobs/

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  2. matt bernius says:

    Also, I want to have people who believe “well, only guilty people plead guilty” or “Prosecutors always have good evidence and can present it well” watch the closing arguments in the Rittenhouse case to see how a county Prosecutors office “masterfully” handles a high profile trial.

    This isn’t an attack on Prosecutors–I know many who are excellent jurists who I would vote for in a heartbeat. It’s more a reminder that maybe we shouldn’t give so much deference or assumed competence to the State’s side.

    The State’s evidence and their ability to compelling present that evidence, should be tested more.

    We should see fewer dramatized trials on TV (Dick Wolff has ultimately done a lot of damange) and more happening in our county and city courts.

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  3. grumpy realist says:

    It’s also problematic because we are still a country that is totally schizoid about what we do to convicted criminals. Are we trying to rehabilitate them? Punish them? Satisfy a desire for vengeance on the part of the victim/victim’s family? And as has been mentioned above, how long do we want their behaviour to linger on official records?

    The other problem is that if a company hires someone that has a criminal record for doing X, the company opens itself up to liability if the same crime or a similar crime is carried out by said person while carrying out company activities/representing the company.

    Basically, in the eyes of society, convicted criminals have shown that they can’t be trusted to adhere to acceptable behaviour. So how do they get the trust of society back?

    (And let’s not get into the mess that class brings into it. Upper-class people find it much easier to get forgiven and “brought back in” to acceptance and the whole “boys will be boys” attitude, grr.)

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  4. James Joyner says:

    @matt bernius: Happy to have helped you keep your self-promise 🙂

    WRT Freeney, I must confess to have either forgotten or never known the full context of his original argument. I took a whole lot of undergraduate and master’s-level law classes from 1986-88 and remembered the phrase and the general gist but did not realize that Freeney was arguing that it was a good thing. My takeaway was simply that, if you get caught up in the system, you’re basically screwed even if you win.

    But, yes, I agree that we’ve upped the price of a conviction going on your “permanent record.”

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  5. Kathy says:

    @matt bernius:

    Having thought more about my question, it’s clear few could afford to pay the legal bills they’d incur for years.

    And that’s another problem, one much harder to solve.

    @matt bernius:

    The State’s evidence and their ability to compelling present that evidence, should be tested more.

    That brings up another question: what’s the percentage of trial convictions? And one more: how much depends on presentation, appearances, and arguments, and how much on actual evidence?

    In theological discussions, I’m often pressed to explain something science has no explanation for. The assumption being if we don’t know the cause or mechanism, then it must have been Huitzilopotchli’s doing (actually some nameless God, or three).

    Science doesn’t work that way. If we don’t know, then all we can say is we don’t know. Ignorance does not grant carte blanche to impose a preferred explanation or cause. The law shouldn’t work that way, either, but often it seems to. The defendant looks guilty, and if they didn’t do it, then who did? We don’t know, then they are guilty.

    As to plea bargains, it’s something that sounds good but it’s terrible. All bargaining is much like that, really. Both sides start off asking far more than they are willing to get or pay, then negotiate down to a compromise. The big difference in criminal matters is that an innocent person rightly would ask to be freed, as they’ve done no wrong. The other difference is what the prosecution can prove in court vs what they claim they can prove.

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  6. Roger says:

    Counterpoint: acceptance of responsibility is a positive factor that merits a reduction in punishment. We see this at every level of life from pre-school on. There are good reasons to show leniency to those who admit wrongdoing.

    The problem with the trial penalty is not that it exists, but that the ever-more draconian penalties legislators have enacted to prove how tough they are on crime have skewed the balance. There’s a big difference between facing a maximum of five years if you’re convicted and getting three in exchange for pleading guilty and facing twenty years and getting three.

    It’s not the subject of your post, but part of the problem also is journalists repeatedly reporting the statutory maximum as the amount of time a defendant was facing when everyone involved in the system knows that under the sentencing guidelines only a fraction of that time is actually on the table. The trial penalty is a real thing, but it often is not nearly as big as it’s reported to be.

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  7. matt bernius says:

    @Roger:

    Counterpoint: acceptance of responsibility is a positive factor that merits a reduction in punishment. We see this at every level of life from pre-school on. There are good reasons to show leniency to those who admit wrongdoing.

    This is also correct. There is nothing inherently wrong with the idea of plea deals or allowing guilty pleas and rewarding contrition.

    The issue is we have constructed a criminal legal system that requires incredibly high rates of them to literally continue to function.

    Also, I’m not advocating that everyone or even most people who take pleas are “innocent.” There is also more than enough evidence to show that the % of people who take pleas even though they were not involved with the crime they were charged with is greater than 0.

    Part of the problem also is journalists repeatedly reporting the statutory maximum as the amount of time a defendant was facing when everyone involved in the system knows that under the sentencing guidelines only a fraction of that time is actually on the table.

    This is correct as well. Reporting should include information about what the average conviction time is in a specific county for a given charge. Unfortunately part of our problem is that access to criminal legal system data in the US is typically awful at best. And so we don’t necessarily know those averages for most places. States and counties don’t typically report that information and most journalism outlets no longer have the staff to request, get, clean, and analyze that data.

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  8. mattbernius says:

    @Kathy:

    That brings up another question: what’s the percentage of trial convictions?

    As I mentioned above, the state of US criminal legal system data is unconscionably bad. But, even if it were good, this is a really difficult thing to calculate because of our charging system. Because someone can be tried for multiple charges in the same trial, “conviction” is a bit of a fraught concept unless we are looking at things at the charge level versus the case level. Right now, the majority of criminal legal system data is maintained at the case level.

    This also creates a nightmare from a record clearing perspective, as most record-keeping systems make it incredibly difficult to operate and conduct analysis at the charge level. Meaning that often people cannot have lesser charges cleared post-conviction because they are bundled with unclearable charges.

    And one more: how much depends on presentation, appearances, and arguments, and how much on actual evidence?

    And this would be impossible to determine without indepth research of every juror (or judge in cases where people agreed to a bench trial).

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  9. mattbernius says:

    @James Joyner:

    My takeaway was simply that, if you get caught up in the system, you’re basically screwed even if you win.

    Yup. Including that in most states, that “win” goes on your permanent record as well and will pop up on background checks–which can also give employers and others cold feet about you. Heck, if you are arrested and never charged with a crime, that also stays on your permanent record too.

    And I’ve interviewed folks going for licensing and volunteer positions that were blocked because of arrest records–not convictions. Moral turpitude requirements are another moral scar on our society.

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  10. matt bernius says:

    Oh, there’s one other key thing to bring up here, which is at once tangental and bound up with plea deals: overcriminalization. The fact is that as time is moving forward, more and more things are criminalized at the State and Federal levels. And often, due to moral panics, the severity of outcomes increases. In other words, things that were once low-level misdemeanors become higher-level ones and higher-level misdemeanors become felony offenses.

    That, in turn, enables overcharging, which then creates pressure to plea. And all of this also helps lead to rises in incarceration.

    Thankfully this is one of those strange bedfellows areas of criminal legal reform where there is a lot of shared interests between the left and right.

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  11. OzarkHillbilly says:

    A good friend of mine was a public defender in the Southern District of Illinois for over a decade. She finally quit because she just couldn’t face this stuff any longer. It was just too depressing to explain to a client for a thousandth time that his/her best option was not a good option at all.

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  12. Michael Reynolds says:

    As OTB’s only official (or at least acknowledged) former criminal, this certainly rang a bell:

    And your court-appointed counsel is likely to be incredibly inexperienced and unable to devote anything like the time and effort to mount an effective defense against the state’s handpicked, experienced, well-financed prosecution.

    Felony burglary of a business, my court-appointed lawyer was a real-estate lawyer. He had never been in court. He had never defended a criminal case. He didn’t know the basics of criminal procedure. Having some background in legal research myself, he tried to draft me as his para-legal.

    Add time and money to the equation and when I re-surfaced, my lawyer was a former prosecutor from the very office that had indicted me, working under one of the top criminal lawyers in California. Dismissed!

    There’s poor people’s justice, and then there’s this whole other system of rich people’s justice.

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  13. Mu Yixiao says:

    I have a good friend who had his life destroyed for reporting a crime. He was sent child porn, and immediately reported it to the police. The detectives cleared him of any wrong doing, but the prosecutor glombed onto it. A year later–after losing his fiance, his house, his savings, and borrowing $20k–he was presented with an option: Take a plea (a year in prison) or it would be escalated to a federal prosecutor.

    He took the plea. Fortunately, since he’s disabled, he was placed in the hospital wing away from the general population.

    It has absolutely destroyed him.

    It’s made me wonder if a solution (or at least improvement) would be to remove the separation of prosecutors and defenders. Have a general pool, with assignments given at random. So, on any given case, an individual might be a prosecutor or a defender. Only the bosses would remain on one side–and they wouldn’t be elected. The single department would share all resources (funding, experts, forensics, etc.) out of a common pool.

    Some states are already getting rid of cash bail, which is a good first step. But a lot more needs to be done.

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  14. matt bernius says:

    @Michael Reynolds:

    Felony burglary of a business, my court-appointed lawyer was a real-estate lawyer. He had never been in court.

    This is sadly not uncommon, especially in smaller counties (was that the case MR). Getting into the grift that happens in places with contracted representation (especially counties that are too small to have a dedicated public defender’s office) is another post in and of itself.

    BTW, I saw in your other post what your bail was set at… oy.

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  15. Michael Reynolds says:

    @matt bernius:
    There were two jurisdictions, South Lake Tahoe where they had a pretty good case, and Redwood City where the case was weaker. It was Redwood City cops who got me, but it was up in the East Bay, so they dropped me in the Martinez jail – unpleasant place where my ‘homie’ turned out to be an actual Nazi.

    Redwood City’s where I got the real estate lawyer. I think it was 10K bail there and 50K in Tahoe. In 1979 both were fairly podunk places. I knew the point of the bail was to force me to confess. I also knew I had a fairly wealthy grandmother who’d come through eventually. And honestly, the Tahoe jail wasn’t bad. When I recently got my mug shot I complimented the sheriff on his fine facility. I probably should have apologized for the thing where we broke off part of a bunk and started digging through the cement block.

    Incidentally, I just looked up my Tahoe judge, the ‘master criminal with the all girl gang’ one. He was removed and I guess they just went through his old cases and tossed out everything they could. I, of course, did not know this and spent another decade plus fugitizing, because the irony gods do love to fuck with you.

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  16. OzarkHillbilly says:

    @Kathy: The defendant looks guilty, and if they didn’t do it, then this is for the time they got away with it.

    FTFY.

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  17. mattbernius says:

    @Michael Reynolds:

    Redwood City’s where I got the real estate lawyer.

    San Mateo County, right? All I can say is when I had contact with the public defender office there last year (or it might have been this year) I was pretty impressed by them. Of course, we’re also talking about different decades.

    I think it was 10K bail there and 50K in Tahoe. In 1979 both were fairly podunk places. I knew the point of the bail was to force me to confess. I also knew I had a fairly wealthy grandmother who’d come through eventually.

    And you jumped bail, right? Did that grandmother ever talk to you again?

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  18. Roger says:

    @matt bernius:

    The issue is we have constructed a criminal legal system that requires incredibly high rates of them [plea deals] to literally continue to function.

    That’s a feature, not a bug. Although that line generally is used as a criticism, here I mean it in a positive way. In an ideal criminal justice system, charges are brought only when (1) the defendant is guilty and (2) the state has sufficient legitimate evidence to prove the defendant’s guilt beyond a reasonable doubt. Our criminal justice system is far from ideal, but as a rule it succeeds in mostly charging guilty people and generally having the evidence necessary to convict them. A rational system where the majority of people charged are guilty should encourage the majority of cases to be resolved by guilty pleas.

    A bail system that encourages pleas regardless of guilt by incarcerating the poor pre-trial is a problem. A system of resource allocation that encourages pleas regardless of guilty by giving the prosecution an overwhelming advantage over the defense for anyone other than the wealthy is a problem. A system that encourages pleas regardless of guilt by allowing the state to manipulate a defendant’s risk at trial by essentially unreviewable charging decisions is a problem. Cops who lie and prosecutors who don’t disclose exculpatory evidence are problems. And on and on.

    The system has many problems, but I don’t see the fact that most cases get resolved by guilty pleas being very high on the list. I think 97% is too high, but I’d be concerned that we had prosecutors going crazy with unjustified charging decisions if the number wasn’t at least somewhere in the 80-90% range.

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  19. Michael Reynolds says:

    @mattbernius:
    Yep.Bail was eventually dropped to 20K. Bail bondsman drove me across the state line to Harvey’s casino to pick up a wire – while lecturing me about how I couldn’t cross state lines.

    No, my grandmother did not talk to me until many years later, but then no one did. There are three big dangers when you jump bail. You might get caught in the commission of another crime. (I stopped criming, pretty much.) Or you get pulled over for speeding, they run a make and out come the cuffs. (I did not drive a car for 22 years. When I finally did it was a brand-new black Mercedes S Class, bought for cash.) And the third big danger is the emotional toll of staying in contact and the possibility of making a mistake driven by emotion. (I absolutely disappeared, no contact.) The possibility of a chance recognition exists, but it’s small, and any time I thought I might be made I moved to another town under a different name.

    Incidentally, I made everyone well financially when I came back. Relationships not so much.

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  20. CSK says:

    Speaking of trials, Rittenhouse has been found NOT GUILTY on all counts.

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  21. Mister Bluster says:

    @matt bernius:..We should see fewer dramatized trials on TV (Dick Wolff has ultimately done a lot of damange) and more happening in our county and city courts.

    What is your proposed remedy for this inequity?

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  22. Kathy says:

    The more one looks at the criminal justice system, the more one finds problems (and the less one finds justice).

    Take what @Mu Yixiao brings up. I’ve heard of similar cases, such as one of a person finding drugs and being charged with possession. This gets tied up, IMO, with elected DAs who want to inflate their conviction counts (plea bargains count as convictions), so they will sometimes go after innocent people whom are nevertheless easy to convict.

    I wonder, too, how the election of judges affects outcomes at trial. The incentive seems to be to favor the prosecution, even if limited by the bounds of the law. This would raise the pressure towards plea bargains as well.

    at times it seems that the whole system is one giant, rotten, cluster-f**k, where reform is hard and ineffectual, so it should be scrapped and replaced with something fair and rational.

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  23. matt bernius says:

    @Mister Bluster:

    What is your proposed remedy for this inequity?

    I wish I had a good answer. Especially when it comes to our cultural addiction to police and court procedurals (we’re not the only nation with that issue, but our’s tend to have a distinct reverent aspect you don’t necessarily see as much elsewhere).

    To @Kathy’s point, there are so many issues with the current construction of the American criminal legal system that any sort of reform seems daunting. At best those of us working in the space (and I’m on a bit of a pause while I dive into SNAP issues) at best try to chip away and one small issue or another.

    Part of the problem is our system, whether intentionally designed that way or not, is a very difficult to change black-box. And to @grumpy realist’s point we’re also a nation that tends to be addicted to punishment. In some ways “Cancel culture” is part of a “proud” American tradition of a lifetime of punishment for a single action (not unlike the frontier and civil war practice of literally branding criminals) that continues to this day.

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  24. matt bernius says:

    @Kathy:

    The more one looks at the criminal justice system, the more one finds problems (and the less one finds justice).

    Yup. There’s a reason why folks working in the reform space increasingly refer to it as the “criminal legal system.”

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  25. de stijl says:

    I was privileged to know a few folks who worked as public defenders in Hennepin County.

    They were smart. Went to good schools. Had big futures ahead.

    They spent 3 or 10 years defending the poorest of us against the weight of the state. Some of the defendants were actually objectively completely innocent, but that doesn’t really matter when the DA brings charges. Plead out or you will get a harsher sentence.

    Innocent until proven guilty, my butt.

    The system is rigged.

    People who do service as public defenders are a treasure. A boon. They are foregoing pretty big bucks to do the right thing by us.

    Being a public defender for several years actually harms your career path amongst the big firms. Wanna make partner? Don’t make waves.

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  26. matt bernius says:

    @de stijl:

    Being a public defender for several years actually harms your career path amongst the big firms.

    Not just at law firms. It also limits your future if you stay in the criminal legal system. It also all but guarantees that you will *never* be a Federal Judge (either Article II or magistrate). More details here:

    https://www.cato.org/study/are-disproportionate-number-federal-judges-former-government-advocates#introduction-summary-findings

    and here https://theappeal.org/there-are-too-many-prosecutors-on-the-bench-take-it-from-me-a-prosecutor/

    There hasn’t been anyone on the Supreme Court with advocacy experience of any form in over 30 years. We currently

    Anecdotally, I have heard that it also often hurts in county elections, but our data on that are so bad that it’s hard to quantify that one.

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  27. matt bernius says:

    @Roger:

    The system has many problems, but I don’t see the fact that most cases get resolved by guilty pleas being very high on the list. I think 97% is too high, but I’d be concerned that we had prosecutors going crazy with unjustified charging decisions if the number wasn’t at least somewhere in the 80-90% range.

    In a fair and transparent system, I think you’re probably in the right area. And, as you acknowledge, we are not in that system. And we also need to acknowledge that if our current system was to drop to 90%, let alone 80%, things would go into crisis. And that remains a big issue.

    Also, we have to acknowledge the challenges of having elected prosecutors. There are Prosecutors I can name who have been driven out by sheriffs and police for exercising too much discretion (again, a high “cases not prosecuted” number potentially tells us as much about policing as it does about prosecution). And also, thanks to ‘Murica and local laws, there are places where the Police, not the Prosecutors, have the power to charge….

    Good times! (As I’m a ray of sunshine on this Friday)

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  28. Kathy says:

    @matt bernius:

    Absent a large popular outcry against it, there’s little to be done for now than to change bits and pieces one at a time.

    The whole thing has accreted over time, beginning with English legal traditions going back centuries. It’s not something rationally thought of and built form the ground up. Though I wonder how much that maters. The US government was largely rationally thought of and built from the ground up, and we spend how much time here talking about its many defects, some of them fatal.

    All complex systems will have drawbacks, less than optimal outcomes in a given process, complicated procedures, etc. The goal should be to get the system to deliver what is wanted more often than not. as a tool of repression, especially disfavoring some groups over others, it seems to be working well.

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  29. James Joyner says:

    @matt bernius:

    There hasn’t been anyone on the Supreme Court with advocacy experience of any form in over 30 years.

    While your larger point is right this can’t be, can it? Thurgood Marshall is barely outside that window, having retired in October 1991, but surely Ruth Bader Ginsburg counts as an advocate? Elena Kagan seems to have done a bit of work that would qualify but was mostly an academic.

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  30. just nutha says:

    @Michael Reynolds: I would suggest that if you made people whole economically, you did what you could. Relationship requires input from both sides; you can’t control that.

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  31. Mimai says:

    @matt bernius:

    Just wanted to pop in to say “Thank you!” for your work in this area. You put skin in the game. I’m adjacent to this, and I know the challenges that people face when they are at their most vulnerable. It’s tempting to despair, throw one’s hands up in defeat, and move on. You don’t do that. Thank you!

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  32. mattbernius says:

    @James Joyner:

    While your larger point is right this can’t be, can it? Thurgood Marshall is barely outside that window, having retired in October 1991, but surely Ruth Bader Ginsburg counts as an advocate?

    Sorry I should have been more clear. In terms of civil advocacy, you are correct that Ginsburg falls into that category. In terms of criminal legal system advocacy (aka Defense work) neither of them have any experience to my knowledge.

    I’m not as up-to-date on Barrett and Kavanaugh as I should be, so I could be wrong on this, but I believe that only Alito and Sotomayor have criminal trial experience as lawyers and both were Federal Prosecutors. The lack of criminal legal system experience on the court is another issue that’s worth a post at some point.

    @Mimai:
    Thank you. What you wrote truely means a lot.

    And, I’m lucky enough to be well compensated for my efforts and this is the least I can do. There are a lot of advocates for system change that are not in as privileged positions. They are my heros.

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  33. Gustopher says:

    @matt bernius:

    The issue is we have constructed a criminal legal system that requires incredibly high rates of them to literally continue to function.

    Ok, here’s my plan — we get people who are charged with minor crimes to all demand a jury trial — so many that it cripples the entire judicial system. Then, while the entire legal system is stuck spinning its wheels, we are free to commit pretty much any crime so long as we are not deemed a danger to society or a flight risk and denied bail.

    If we can get trial dates out 20 years, then 60-70 year old cat burglars are basically untouchable.

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  34. de stijl says:

    @Gustopher:

    That sounds like the backstory for the movie / tv franchise The Purge.

    It’s kinda stupid as a premise. But, I did enjoy the double meaning of “purge”.

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  35. Mike in Arlington says:

    @matt bernius: I know it’s not much, but Biden is trying to put some public defenders on the bench.
    https://www.nbcnews.com/politics/congress/new-public-defenders-joe-biden-quietly-makes-history-courts-n1281787

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  36. de stijl says:

    A lot of PDO people burn out.

    Massive caseload.

    Offering defense for too many violent scumbags too often.

    It is soul crushing work.

    These folks have their own slang and lingo. They do not like defending what they call “kiddie diddlers”. It comes with the job. You need to be professional regardless.

    It is a goddamn tough job. Vital. Unrewarding. Poorly paid. Crucial.

    The people who do it deserve our collective praise and support.

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  37. Zachriel says:

    Have a care for the law. Tis a cranky and twisty old thing. And you may flout it half a dozen times. But let it once come to grips with you, and you find it harder to be loose from than a great black squid. — a warning to Ross Poldark

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  38. flat earth luddite says:

    I’ve been reading this one with great interest today, and have bitten back about 20,000 words that I’ve typed and erased. And re-typed. Re-erased.

    Folks, I’d like to thank everyone here. The idea that there are people who genuinely understand how fracked the system is, and are working inside it to fix it, touch me deeply, and make me grateful to know you all.

    And Michael, I understand the stressors of living under cover. I’ve been living in concealment since 1981.

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